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John Austin and Constructing Theories of Law

This paper was presented at the Conference, "John Austin and His Legacy," held at University College London in December 2009.

One of the standard criticisms of John Austin’s work is that his portrayal of law, as essentially the command of a sovereign to its subjects, does not fit well with the way law is practiced or perceived by lawyers, judges, and citizens. The argument continues, that since the theory “fails to fit the facts,” Austin’s theory must be rejected in favor of later theories that have better fit. Many influential modern approaches to the nature of law, including Joseph Raz’s exclusive legal positivism and Ronald Dworkin’s interpretivism, while they criticize the lack of fit of theories like Austin’s, themselves unapologetically offer characterizations of legal practice that deviate in significant ways from the way most people practice or perceive law. Thus, at least at first glance, it appears that many contemporary legal theorists wish to have it both ways: they use the deviations from conventional understandings as grounds for dismissing some theories, but forgive or overlook comparable deviations in their own theories.

This Paper explores what general principles can be learned, or developed, regarding when or to what extent deviation from the way law is practiced and perceived is appropriate in a theory of the nature of law. Additionally, the Paper also consider whether, in light of the proper approach to fit and mistake in theory-construction, Austin’s theory of law might be a more viable alternative than is conventionally assumed.